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Development Bank gets relief in row with former InterCon owners
The Intercontinental Hotel as it stands, after years of operation the hotel was closed down, on March 17, 2023.
Photo credit: File | Nation Media Group
Development Bank of Kenya has succeeded in quashing a demand for a Sh100 million payout in a long-running trespass dispute with the owners of the former InterContinental Hotel, Nairobi.
High Court Judge Aleem Visram said that the bank had proved that it capped its guarantee to Kenya Hotel Properties Ltd at Sh70 million, hence a Sh99.9million demand by Willesden Investment Ltd was irregular.
The court said Willesden Investment will be at liberty to apply for fresh warrants of attachment that conform with the orders of the court and do not exceed the liability of the bank.
Willesden Investment has been involved in a dispute with Kenya Hotel Properties Ltd since 2000 over a plot adjacent to the former hotel, which it initially used as a parking lot for its guests. It successfully sued Kenya Hotel Properties for trespass, but the payment of damages has been delayed by disputes, which had been argued all the way to the Supreme Court.
The bank wanted to set aside the warrant of attachment issued against it by Willesden Investment.
“The objector’s application dated September 18, 2023, partially succeeds to the limited extent that execution by way of attachment of its goods exceeding the amount stipulated in the order issued on 18th August, 2023, and exceeding the upper limit of its guarantee is irregular. The warrants of attachment dated September 12, 2023, are hereby set aside,” said the judge.
Justice Visram, however, declined to declare that the decree cannot be enforced as sought by Kenya Hotel Properties. The firm had argued that the claim was time-barred since it was more than 12 years since the Court of Appeal delivered judgment in favour of Willesden Investment.
The judge said the payment was not enforced because there was a court order suspending the demand. He added that another judge had, in August 2023, stated that the decree was not statute-barred, execution having been pursued continuously.
He said the decision has not been overturned on appeal or set aside.
“Therefore, because the record reveals that subsequent orders and proceedings have repeatedly interrupted and extended the enforceability of the decree, I find the above argument untenable,” said the judge.
The judge also rejected an argument by Kenya Hotel Properties that the claim cannot be enforced because the Ethics and Anti-Corruption Commission had successfully argued that the contested plot was set aside for a public road.
